Crawford & Co. v. H. & G. Feder

Eaxey, C. .1. : This appeal was entered in October last, the citation was served on the 19fh day of December, and the 33th day of the present month, January, was the first day of the pending term of this court. Eule 101 of the [524] Circuit Court Common Law Rules provides that the citation in law appeals shall be served in the same manner and with like effect as a wilt of scire facias axl audieudmn. or roves, and the Statute,* *1 2, p. 848, McClellan’s Digest, enacts that this writ shall be served at least twenty-live days previous to the first day of the term” of this court to which it is returnable. If either the day upon which the citation was served or the first day of the term, or return day, can be counted, the requirement of the statute has been met. The law is that one or the other of these (lavs may be counted unless the statute calls for clear ,oi* entire, (lays; which the language of this statute does not do, in our 'judgment, and according to the better authority. State vs. Town of Winter Park, 25 Fla., 375; Garner & Nevill vs. Johnson, 22 Ala., 494; Thomas vs. Afflick, 16 Penn., St., 14; Northrop vs. Cooper, 23 Kan., 432; Stebbins vs. Anthony, 5 Colorado, 348. Some courts count the day of service where the statute requires a certain number of days previous notice*, and exclude the return day. Garner & Nevill vs. Johnson, Thomas vs. Afflick, supra, Northrop vs. Cooper, 23 Kan., 432; Hagerman vs. O. B. & S. Association, 25 O. St., 186; while others count the return day and' exclude the day of service. State vs. Town Winter Park, 25 Fla,, 371; King vs. Justices, 4 N. & M. (30 Eng. Com. Law,) 380; Vairin vs. Edmondson, 5 Gilman, 270; Forsyth vs. Warren, 72 Ill., 68; whereas others hold that one day may Ice counted or the other omitted, without indicating [525] which is tlie better rule. Den vs. Fen, 8 N. J. (Law), 303; Day vs. Hall, 12 N. J. (Law,) 203; Walsh vs. Boyle, 30 Md., 263. Our rule of court, Common Law Rule OB, has provided that in all cases in which any particular number of days, not expressed to be clear days is prescribed by the rules of practice of the courts the same shall be reckoned exclusively of the first day and inclusively of the last, unless the last shall happen to fall on Sunday or on certain other specified days, and then the time shall be reckoned exclusively of the last day also. If it be that the language of the statute under consideration puts it beyond the influence of the rule last mentioned and the authorities on which the rule may be regarded as based, and that consequently the first day of the term cannot be counted, we still think that the day of servicie can be counted upon the Alabama and Pennsylvania cases first cited above, as in law in such cases a day is regarded as an indivisable point of time, (Bigelow vs. Wilson, 1 Pick., 487; Kimm vs. Osgood, 19 Mo., 61; Lang v. Phillips, 27 Ala., 311,) the law taking no notice of fractions of a, day except in questions of priority of rights, or conflicting rights. Broom’s Legal Maxims, 142. Counting the first day of the term and excluding the day of service, or counting the latter day and excluding the former, the citation was served in due time. The use of the expression in Driggs vs. Higgins, 19 Fla., 103; as to inter tuning (laya, was not in our opinion [526] intended to conflict with this conclusion. Vairin vs. Edmondson, Forsyth vs. Warren, supra. The motion is denied, and it wiil be so ordered.